No Criminal Charges Against Trailhead

January 30, 2007

It’s been more than three months since 4th Judicial District Attorney John Newsome said a decision was nearly at hand as to whether he would criminally charge Trailhead Group director Alan Philp over false political ads attacking Democrat John Morse.

That was shortly after Philp’s pal and GOP activist attorney Scott Gessler sent out an urgent e-mail message (excerpts printed below) claiming that Newsome, a conservative Republican, was going to criminally charge Philp, the head of the Republican 527 organization over erroneous ads about Morse’s record as a former police chief. Not only was the idea of criminal charges outrageous, Gessler wrote, but, “Alan needs help” – as in, send cash now.

At the time, Morse, who was running for the state senate against incumbent Ed Jones, predicted the results of the investigation would come down “right after” the Nov. 7 election. Despite Trailhead’s numerous attacks against him, Morse handily won the election. And this week, Newsome’s office announced no file criminal charges in the case will be pursued against the Trailhead Group, or any of its actors.

Morse says that while he is “disappointed” that the DA is not filing criminal charges, “I completely respect their decision. They did a thorough investigation, and I respect their objective opinion. But I still say, let’s take it to the jury and see if they were just blatantly incompetent, or criminal, and see if a jury is willing to convict.”

The investigation was based on a year-old Colorado statute that makes it is a class 2 misdemeanor to recklessly and in conscious disregard, publish or broadcast falsehoods about a political candidate.

In radio ads sponsored by the Trailhead Group, Morse was accused of being “incompetent” and “mishandling” a case involving a Fountain man. Trailhead’s ad claimed the man had pleaded to a misdemeanor when, in fact, he was convicted of felony menacing and spent three years in jail.

And, on one glossy mailer, Trailhead put a picture of Morse right underneath a close-up of a gun aimed at the back of a uniformed officer with the headline: “Murder = Misdemeanor?” Inside, Morse was accused of having a “dubious record of incompetent and lackadaisical police work.” The radio ads were eventually pulled off the airwaves, and Morse filed a complaint with the DA’s office.

Philp has been quoted previously calling the erroneous claims an “honest mistake.” Chief Deputy District Attorney Lisa Kirkman said numerous people were interviewed during the investigation, and the DA could not establish that the Trailhead Group engaged in reckless disregard.

From the DA’s finding: “The legal issue is whether the Trailhead Group acted knowingly or recklessly when the ads were written and sent. Based on a lengthy investigation, it was learned that Trailhead acted negligently and failed to confirm the factual content of the ad. The investigation showed that Trailhead relied on a researcher and did not double check the information provided. There is no evidence in the investigation that anyone at Trailhead acted recklessly or in conscious disregard of the truth or falsity of the statement published.”

Morse, who won the election by a 60-40 margin over Jones, this week accused the Trailhead Group, which was founded by former Gov. Bill Owens and funded by numerous high profile Republicans, of engaging in a “witchhunt” against him.

“Their incompetence was blinded by their mean-spiritedness,” Morse said.

Also in response, Colorado Democratic Party chair Pat Waak has called for the findings of the DAs investigation to be released.

In the meantime, here are excerpts from Scott Gessler’s Oct. 19 letter:

October 19, 2006

Hi Everyone,

I’m writing because tomorrow, a good friend of mine will be criminally charged for political speech. You will likely read about it in the paper. These charges are unconstitutional, and I believe the procedures and investigation have been timed to harm him. Whether you are Republican or not, this should worry you. Political campaigns can get nasty, but one side should not be able to throw the other in jail (or bankrupt him with attorney fees while destroying his reputation).

I’m obviously angered by this whole situation, but I’ll quickly make my three points.

First, Alan needs help. He is threatened with jail time and bankruptcy. He has retained a criminal attorney (not me), which costs real money. Please help. Yes, I know we’re tired of political contributions, but a person’s liberty is at stake. We cannot let Democrats use the criminal law as a political weapon. The former sheriff filed the complaint, and his law enforcement colleagues are now filing charges. We need to rally on this one, because if we lose we can expect criminal charges against us every time. I know, because I am fighting (even now) meritless campaign finance charges filed against my clients. Now, they’re trying criminal charges.

Second, I firmly believe this is a hack job. Not a Republican-Democrat thing, but law enforcement professionals giving one another special “courtesy.” Alan’s behavior not was “willful,” and certainly not “reckless” (a conscious disregard of a known and unjustifiable risk). There have been far more egregious actions in the past, but no charges. (For example, Main Street Colorado – a Democratic 527 – ran ads blatantly accusing several Republican candidates of opposing mammograms, because Trailhead received money from insurance companies, which in turn oppose mandatory mammogram coverage). Plus, the criminal charges are being filed three weeks before an election. What disturbs me is that law enforcement officials running for office should not receive even the appearance of special “courtesies” from their colleagues. For example, the former sheriff and current DA have served on at least one board together. I began my career as a trial attorney for the Department of Justice, so I do not make these statements lightly. But this stinks.

Third, this law is unconstitutional and should be struck down. Political speech – even erroneous or false statements – should not land someone in jail. We have civil defamation laws, yet political speech is singled out for particular scrutiny and criminalization. In 1798, Benjamin Franklin’s grandson (a newspaper publisher) was thrown in jail under the alien and sedition act for criticizing the government. He died there. Yes, this sounds dramatic, but certain principles are worth fighting for. We like to consider ourselves more civilized now, but apparently we still have urges to throw people in jail for political speech. Or at least destroy their reputation, bankrupt them, and make their lives generally miserable (maybe not in that order, of course).

So here’s the pitch: Alan needs help with legal fees. We should not leave him twisting in the wind. Give me a call or email, and I can tell you where to direct checks.

Thanks,
Scott E. Gessler